Bishop and Australian Postal Corporation (Compensation)

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Bishop and Australian Postal Corporation (Compensation) [2017] AATA 1807 (20 October 2017)

Division:GENERAL DIVISION

File Numbers:         2014/1930, 2015/2437, 2015/2444, 2016/5466

Re:Paul Bishop

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:20 October 2017

Place:Melbourne

The Tribunal sets aside the decision identified by application number 2014/1930 and substitutes its decision that the injury to the right shoulder is causally related to employment and liability is attracted under s 14, s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988.

The reviewable decisions of the other three applications are affirmed. 

.................[sgd]......................................................

Miss E A Shanahan, Member

COMPENSATION – bilateral shoulder injuries – cervical spine pathology – secondary psychiatric symptoms or disorder – questions of liability and compensation – left shoulder claims accepted by consent in the course of the hearing and claim for household assistance under s 29 withdrawn – claims reduced from nine to four – decision in relation to right shoulder injury set aside – decisions relating to secondary psychological disorder, cervical spine pathology and surgical treatment for the latter as denied by respondent, affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Company Pty Ltd v Semelitch (1964) 110 CLR 626
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth of Australia v Keith Colville Smith (1989) 18 ALD 224
Comcare v Canute (2005) 148 FCR 232
Comcare v Paul Mooi (1996) FCA 580
Canute v Comcare [2006] HCA 47
Comcare v Power (2015) 238 FCR 187

Secondary Materials
Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006

REASONS FOR DECISION

Miss E A Shanahan, Member

20 October 2017

1.Between 2014 and 2016 Mr Bishop lodged nine claims for compensation pursuant to s 14, s 16, s 19 and s 29 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act). In summary, these allegedly arose from work caused rotator cuff type injuries, first to the left shoulder in September 2011, and then to the right shoulder in 2013. The respondent accepted liability for the left shoulder injury but disputed the claims for payment under s 19 of the SRC Act and the claim for the cost of repeat surgical intervention. 

2.Mr Bishop lodged his applications for review by the Administrative Appeals Tribunal separately, and all nine claims were listed for de novo hearing over a period of five days, from 22 to 26 May 2017. 

3.Mr Mark Carey of counsel, instructed by Maurice Blackburn Lawyers, represented Mr Bishop. Mr Michael Snell of counsel, instructed by Sparke Helmore Lawyers, represented the Australian Postal Corporation. The respondent provided the T‑documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), which was assigned the exhibit number ‘R1’. Both parties tendered further documentation and a list of these exhibits is appended to this decision. 

4.Mr Paul Bishop, Mr Russell Miller, Mr Patrick Lo, Mr Michael Khan, and Mr Ronald Haig gave evidence in…

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Details
Case
[2017] AATA 1807
Decision Date

CaseChat Overview and Summary

This matter concerned a claim for compensation by Mr Paul Bishop against the Australian Postal Corporation. Mr Bishop alleged he suffered injuries to his right shoulder, neck, and a psychiatric disorder as a result of his employment as a B-Double truck driver. The Australian Postal Corporation had denied liability for these conditions. The case was heard by Miss E A Shanahan, Member, of the Tribunal.

The legal issues before the Tribunal were whether Mr Bishop’s right shoulder pathology constituted an injury arising out of or in the course of his employment, and whether his claims for neck pain and a psychiatric disorder were similarly compensable. Specifically, the Tribunal had to determine if the duties performed by Mr Bishop, including the manual lifting of large tyres, contributed significantly to his right shoulder condition, and if his neck and psychiatric claims were supported by sufficient evidence to establish a work-related injury or aggravation.

The Tribunal found that Mr Bishop’s right shoulder pathology was an injury arising out of his employment, based on evidence that he used his right shoulder to lift after sustaining a left shoulder injury. This conclusion was supported by medical evidence indicating his right shoulder was normal in 2011 but abnormal by 2013, with investigations revealing rotator cuff injuries and bursitis. Regarding the neck injury claim, the Tribunal rejected it due to conflicting medical evidence and the lack of definitive diagnostic investigations, such as nerve conduction studies, which were recommended by several medical professionals. The claim for a psychiatric disorder was also rejected, with the Tribunal finding the evidence suggested an anger problem rather than a diagnosed psychiatric disorder, and noting no period of incapacity attributable to such a disorder.

Orders

Orders of the court

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Background

Background to the litigation

Mr Bishop’s evidence has been summarised under BACKGROUND TO THE APPLICATION. In his oral evidence he enlarged on his duties, particularly those relating to his interstate B-Double truck driving and the frequency of having to change tyres. He described the method taught by Australia Post to perform this task. Drivers were either to lever the large tyres into position or lift them manually from behind their back, grasping the tyre with both hands, presumably with their knees bent, and then raising it to the height of the axle. While no supporting evidence was given, the Tribunal assumes this was to minimise back injuries given the size and weight of these tyres. This process was referred to as back lifting. Mr Bishop said the maximum number of tyre changes he had to do was three in two hours, but this depended on which tyre blew as to how many you might have to take off. For example, if it was an inside tyre that punctured, you had to take off two tyres to access the puncture and replace the punctured one. He said he did not do back lifting between 2013 and 24 April 2014. At the time of the hearing he was working three hours per day, three days per week as a yard marshal directing vehicles. While he did not think he would have had any difficulty in working longer than three hours, he was following a return to work program devised by Australia Post’s Leanne Davis. On further questioning Mr Bishop thought that on average he would have had to change a tyre once a fortnight in the summer and once a month in the winter. Mr Russell Miller – orthopaedic surgeon Mr Miller first saw Mr Bishop on 7 March 2011 in relation to his left shoulder symptoms. He provided a report on 23 November 2015 (Exhibit A4). On 4 April 2012 Mr Miller operated on Mr Bishop’s left shoulder, performing an arthroscopy and multiple procedures, including acromioclavicular joint resection by acromioplasty, repair of the biceps tendon and sub-acromial decompression by excision of the sub-acromial bursa. In his initial report Mr Miller referred to the pathology as being in the right shoulder, describing it as chronic right shoulder problems. However, all his detailing of examination findings and symptoms refer to the left shoulder. The Tribunal accepts that this was an incorrect initial siting of the lesion. In his evidence before the Tribunal Mr Miller identified the work-related contribution to the development of shoulder pathology as performing work at an above shoulder level. The Tribunal asked whether the lifting of tyres from the back lifting position would place greater stress on the shoulders. Mr Miller agreed that this would be a significant contribution. In further examination by Mr Carey, Mr Miller confirmed that it was above shoulder and excessive strain bio-mechanical factors that contributed to the development of shoulder pathology. Mr Miller had provided several reports over the years but had not been involved in the re‑do surgical procedures on Mr Bishop’s left shoulder in late 2015, which were performed by Professor Ek. Mr Patrick Lo – neurosurgeon

Evidence

Evidence Before The Court

Mr Bishop was assessed by Dr James Hundertmark, psychiatrist, on 16 March 2015. Dr Hundertmark, while noting the past and present history, did not find any evidence of a psychiatric disorder as delineated by the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). A primary determination of 13 April 2015 denied liability and this was confirmed on review by the Australia Post reconsideration delegate on 4 May 2015. EVIDENCE BEFORE THE TRIBUNALMr Paul Bishop Mr Bishop’s evidence has been summarised under BACKGROUND TO THE APPLICATION. In his oral evidence he enlarged on his duties, particularly those relating to his interstate B-Double truck driving and the frequency of having to change tyres. He described the method taught by Australia Post to perform this task. Drivers were either to lever the large tyres into position or lift them manually from behind their back, grasping the tyre with both hands, presumably with their knees bent, and then raising it to the height of the axle. While no supporting evidence was given, the Tribunal assumes this was to minimise back injuries given the size and weight of these tyres. This process was referred to as back lifting. Mr Bishop said the maximum number of tyre changes he had to do was three in two hours, but this depended on which tyre blew as to how many you might have to take off. For example, if it was an inside tyre that punctured, you had to take off two tyres to access the puncture and replace the punctured one. He said he did not do back lifting between 2013 and 24 April 2014. At the time of the hearing he was working three hours per day, three days per week as a yard marshal directing vehicles. While he did not think he would have had any difficulty in working longer than three hours, he was following a return to work program devised by Australia Post’s Leanne Davis. On further questioning Mr Bishop thought that on average he would have had to change a tyre once a fortnight in the summer and once a month in the winter. Mr Russell Miller – orthopaedic surgeon Mr Miller first saw Mr Bishop on 7 March 2011 in relation to his left shoulder symptoms. He provided a report on 23 November 2015 (Exhibit A4). On 4 April 2012 Mr Miller operated on Mr Bishop’s left shoulder, performing an arthroscopy and multiple procedures, including acromioclavicular joint resection by acromioplasty, repair of the biceps tendon and sub-acromial decompression by excision of the sub-acromial bursa. In his initial report Mr Miller referred to the pathology as being in the right shoulder, describing it as chronic right shoulder problems. However, all his detailing of examination findings and symptoms refer to the left shoulder. The Tribunal accepts that this was an incorrect initial siting of the lesion. In his evidence before the Tribunal Mr Miller identified the work-related contribution to the development of shoulder pathology as performing work at an above shoulder level. The Tribunal asked whether the lifting of tyres from the back lifting position would place greater stress on the shoulders. Mr Miller agreed that this would be a significant contribution. In further examination by Mr Carey, Mr Miller confirmed that it was above shoulder and excessive strain bio-mechanical factors that contributed to the development of shoulder pathology.

Decision

Reasons for decision

In relation to the claim for a neck injury, Mr Snell contended there was no relationship of this condition to Mr Bishop’s employment, as the condition was of a degenerative nature commensurate with his age. Therefore liability did not exist and as a corollary no liability was attracted under s 16 of the SRC Act for the recommended surgical procedure. TRIBUNAL’S DECISION The Tribunal decides that Mr Bishop’s right shoulder pathology is an injury in accordance with the s 5A definition arising from his preferred use of his right upper limb in his duties as a B-Double driver for Australia Post in the period during which he suffered from symptoms relating to his left shoulder. The latter left shoulder injury has been accepted by Australia Post as being an aggravation of an underlying or pre-existing ailment contributed to by a significant degree the duties of his employment. The Tribunal’s decision is based primarily on the report of Dr Muirden to Australia Post in October 2011 recording that the history obtained and the physical examination revealed that the right shoulder was normal. It was clearly not normal in August 2013 as reported by Mr Russell Miller. Investigations in the form of ultra-sounds and subsequently MRI revealed rotator cuff type injuries, sub-acromial bursitis and impingement. Mr Miller had recommended surgical intervention in the form of arthroscopy and depending on the findings appropriate surgical intervention. The Tribunal finds that the later medical evidence was conflicting or alternatively non‑decisive. However, based on the opinion of Dr Muirden that there was no abnormality in the right shoulder joint in 2011, the onset of symptoms in 2013 following left shoulder surgery and Mr Bishop’s evidence that he used his right shoulder thereafter to lift, the Tribunal finds a s 5A injury arising out of or in the course of employment to be the correct conclusion. Mr Bishop’s claim relating to his neck pain/cervical spine pathology is fraught with conflict in both the objective evidence and opinions. Once more, based on his age, some underlying degenerative changes in the cervical spine would be expected and with the passage of time would become symptomatic. Such a conclusion is consistent with both the CT and the MRI findings. However, the Tribunal notes and gives weight to the opinions of Dr C-Ong, Mr Khan, Dr Cheeseman, Mr Miller, and Mr Haig who all recommended the performance of nerve conduction studies before a diagnosis of cervical nerve root radiculopathy could be accepted. Thus, the Tribunal rejects the claim for liability given the incompleteness of the investigation. Similarly, the claim for a psychiatric disorder is subject to conflicting medical evidence and opinion, and could only be considered at the most as an aggravation of an underlying or previous ailment in accordance with s 5B of the SRC Act. On the evidence before the Tribunal, particularly regarding Mr Bishop’s evidence and behaviour, it seems more likely that he suffers from an anger problem rather than a psychiatric disorder. Additionally, the evidence before the Tribunal is that between the time of diagnosis and 2014 when Mr Bishop ceased work and thereafter reduced his hours of work because of his shoulder problems, there was no incapacity for work attributed to the psychiatric disorder.

Ratio Decidendi

Legal Principle Established

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